UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-2437
DAVID S. KREWSON,
Plaintiff - Appellee,
v.
CITY OF QUINCY, ET AL.,
Defendants - Appellees,
____________________
JOHN MCDONOUGH,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, Senior U.S. District Judge] __________________________
____________________
Before
Boudin, Circuit Judge, _____________
Aldrich, Senior Circuit Judge, ____________________
and Young,* District Judge. ______________
_____________________
David C. Jenkins, with whom Grady and Dwyer was on brief for ________________ _______________
appellant.
Robert LeRoux Hern ndez for appellee David S. Krewson. _______________________
____________________
January 23, 1996
____________________
____________________
* Of the District of Massachusetts, sitting by designation.
YOUNG, District Judge. David S. Krewson ("Krewson") YOUNG, District Judge. _______________
originally brought this action against Quincy Police Lieutenant
John McDonough ("McDonough"), McDonough's two immediate super-
visors, and the City of Quincy (the "City") pursuant to 42 U.S.C.
1983 and Mass. Gen. L. ch. 12, 11I for violating his civil
rights during the course of Krewson's arrest and detention on
murder charges.1 Krewson's complaint also stated claims under
Mass. Gen. L. ch. 258 (negligence) and common law theories of
false arrest, false imprisonment, assault and battery, malicious
prosecution, and intentional infliction of emotional distress.
After a four-day trial, the district court granted
directed verdicts to both supervisors on all counts, to the City
on all counts except negligence under Mass. Gen. L. ch. 258, and
to McDonough on all counts but those arising out of certain of
his actions on October 12, 1986. The jury found that the City
was not liable for negligence, and returned a verdict in favor of
McDonough on Krewson's federal civil rights claim. The jury held
McDonough liable, however, for intentionally inflicting emotional
distress on Krewson (awarding $5,000) and for violating the
Massachusetts Civil Rights Act, awarding Krewson $1,500 on this
latter claim. Judgment entered on March 20, 1992. None of the
parties appealed this judgment.
Thereafter, Krewson filed an application under Mass.
Gen. L. ch. 12, 11I, seeking $67,387 in attorneys' fees (based
on 305.9 attorney hours and 154.7 law clerk hours) and $13,262.29
____________________
1 The charges against Krewson were ultimately dismissed.
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in costs, for a total of $80,649.29. McDonough's counsel made no
objection to this application despite Massachusetts District
Court Local Rule 7.1(B)(2), which requires the filing of written
objection to such a motion within fourteen days after service.
The district judge allowed the fee application by written order
which, in its entirety, reads:
I find that the attorney did the work
certified, that his client prevailed, and
that the rates charged are reasonable and
representative of rates in the community
for comparable legal services. The
petition is allowed.
Margin Endorsement of Petition for Fees, Addendum to Appellee's
Brief at 1.
This was enough to catch the attention of McDonough's
counsel, who promptly moved for reconsideration, belatedly
briefing the relevant issues. The district judge denied the
motion, and this appeal followed.
I. STANDARD OF REVIEW I. STANDARD OF REVIEW ______________________
When, in determining a fee award, a district court
carefully "weigh[s] the factors to be considered and arrive[s] at
an award within a supportable range, the appellate court will not
interfere." See Nydam v. Lennerton, 948 F.2d 808, 813 (1st Cir. ___ _____ _________
1991) (quoting Wojtkowski v. Cade, 725 F.2d 127, 131 [1st Cir. __________ ____
1984]). Thus, this Court will reverse "only for mistake of law
or abuse of discretion." Lipsett v. Blanco, 975 F.2d 934, 937 _______ ______
(1st Cir. 1992); United States v. Metropolitan Dist. Comm'n, 847 _____________ __________________________
F.2d 12, 14-15 (1st Cir. 1988).
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II. ANALYSIS II. ANALYSIS _____________
Where a request for attorneys' fees comprises a sub-
stantive part of the state-law remedy for a state-law cause of
action, the proper rule of decision governing the award is
derived from Massachusetts, rather than federal, practice. See ___
Northern Heel Corp. v. Compo Indus., Inc., 851 F.2d 456, 475 (1st ___________________ __________________
Cir. 1988) (applying Massachusetts law to the award of attorneys'
fees in diversity action). Thus, because Krewson here prevailed
on his state civil rights claims and not his 1983 claims, the
proper statutory reference is Mass. Gen. L. ch. 12, 11I.
The Massachusetts Civil Rights Act provides that:
[a]ny aggrieved person . . . who
prevail[s] in an action authorized by __________
this section shall be entitled to an
award of the costs of the litigation and
reasonable attorneys' fees in an amount __________
to be fixed by the court.
Mass. Gen. Laws Ann. 12, 11I (West 1986) (emphasis supplied).
McDonough here argues both that Krewson is not a "prevailing
party" within the meaning of the statute and that the fees
awarded were not "reasonable" in light of the small amount of
money awarded Krewson by the jury. Further, McDonough argues
that the trial court committed reversible error by awarding
Krewson costs, including expert witness fees, in an action
arising under state law.
1. "Prevailing party" -- The Supreme Judicial Court of 1. "Prevailing party" --
Massachusetts has "conclude[d] that the Legislature intended
'prevail' to have the same meaning [in ch. 12 11I] as it does
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in 42 U.S.C. 1988." Batchelder v. Allied Stores Corp., 393 __________ ____________________
Mass. 819, 822 (1985). As a "plaintiff who wins nominal damages
is a prevailing party under 1988," Farrar v. Hobby, 113 S. Ct. ______ _____
566, 573 (1992), the district court did not abuse its discretion
in ruling that the jury's award of $1,500 was sufficient to
entitle Krewson to prevailing party status under Massachusetts
law. See also Wilcox v. City of Reno, 42 F.3d 550 (9th Cir. ___ ____ ______ _____________
1994) (upholding a $66,535 fee award to plaintiff, loser of a
barroom brawl with police, who won $1 on his excessive force
claim under 1988).
2. "Reasonableness" -- Although there is no controlling 2. "Reasonableness" --
authority on the Massachusetts standard for "reasonable"
attorneys' fees under the state civil rights act, courts have
held that, with respect to other fee-shifting statutes in
Massachusetts, there is "no pat formula for computation of fee-
shifting awards." See, e.g., Peckham v. Continental Casualty ___ ____ _______ ____________________
Ins. Co., 895 F.2d 830, 841-42 (1st Cir. 1990) (awarding _________
attorneys' fees for violation of Mass. Gen. L. ch. 93A in
diversity action). Rather, courts should "focus[] on what
[counsel's] services were objectively worth." Id. at 842 (citing ___
Heller v. Silverbranch Constr. Co., 376 Mass. 621 [1978]
[Hennessey, C.J.]). In making this determination courts may
consider a variety of factors, including the nature of the case,
the time and labor required, the amount of damages involved, the
result obtained, the experience and reputation of the attorney,
the usual price charged by other attorneys for similar work, and
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the amount of awards granted in other cases. See Linthicum v. ___ _________
Archambault, 379 Mass. 381, 388-89 (1979). ___________
Despite the brevity of his endorsement, the district
judge here explicitly found that "the attorney did the work as
certified, that his client prevailed, and that the rates charged
are reasonable and representative of rates in the community for
comparable legal services." Margin Endorsement of Petition for
Fees, Addendum to Appellee's Brief at 1. In so doing, the
district judge adopted the calculation proffered by plaintiff's
attorney. This is sufficient to constitute a "clear explanation
of the reasons undergirding . . . [the] fee award," and entitles
the trial court's determination to deference. Peckham, 895 F.2d _______
at 842; see also Stowe v. Bologna, 417 Mass. 199, 203 (1994) ___ ____ _____ _______
(stating that the trial court should start from the amount of
time documented by the plaintiff's attorney and then decide
whether these calculations are reasonable, taking into account
the public interest in having persons with meritorious claims
adequately represented) (fee award for violation of rent control
statute); Fontaine, 415 Mass. at 324 ("[t]he amount of a ________
reasonable attorney's fee, awarded on the basis of statutory
authority . . . is largely discretionary with the judge, who is
in the best position to determine how much time was reasonably
spent on a case, and the fair value of the attorney's services");
Deary v. City of Gloucester, 9 F.3d 191, 197 (1st Cir. 1993) _____ ___________________
(stating that appellate courts should defer to any thoughtful
rationale articulated by the trial court when reviewing a fee
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award); United States v. Metropolitan Dist. Comm'n, 847 F.2d 12, _____________ _________________________
20 (1st Cir. 1988) ("The district court -- which . . . has
frequently lived with the litigation and the lawyers for long
periods of time, and which is likely to be more familiar with the
marketplace -- has the best coign of vantage").
Moreover, where Massachusetts courts have reviewed fee
awards pursuant to remedial statutes, they have held that an ________
award of reasonable attorneys' fees should not be reduced to ___
reflect the actual amount of the jury award. See, e.g., Sanitoy, ___ ____ ________
Inc. v. Ilco Unican Corp., 413 Mass. 627, 633-34 (1992) (holding ____ _________________
that because of the nature of the case and the public interest
served by the "citizen enforcement" provision of the
Massachusetts hazardous waste statute, courts may not reduce an
award of reasonable attorneys' fees by a percentage of response
costs recovered); Olmstead v. Murphy, 21 Mass. App. Ct. 664, 666, ________ ______
rev. denied, 397 Mass. 1102 (1986) ("[w]hen the public has, as ____________
here, a particular interest in the vindication of a legal right,
the market value of legal services . . . should not be
automatically discounted because that value is high in relation
to the amount recovered") (fee award under Mass. Gen. L. ch. 215,
34A); see also Fontaine v. Ebtec Corp., 415 Mass. 309, 325 _________ ________ ____________
(1993) (determining that in employment discrimination case, "fair
market rates for time reasonably spent should be the basic
measure of reasonable fees, and should govern unless there are
special reasons to depart from them") (fee award pursuant to
Mass. Gen. L. ch. 151B, 9).
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Because the policy interests underlying fee awards
under federal civil rights statutes are similar to those
underlying fee awards in Massachusetts civil rights cases, case
law under 1988 provides additional guidance. The Supreme Court
has recognized that a plaintiff who obtains relief in a civil
rights lawsuit, especially "in the area of individual police
misconduct," acts as a private attorney general deterring future
violations and that, therefore, consistent with congressional
intent, "reasonable attorney's fees . . . are not conditioned
upon and need not be proportionate to an award of money damages."
City of Riverside v. Rivera, 477 U.S. 561, 574-76 (1986) ___________________ ______
(upholding $245,456.25 fee award based on jury award of
compensatory and punitive damages of $13,300 for federal claims
and $20,050 for state claims). Likewise, courts in this circuit
have held that in federal civil rights cases a fee award is not
limited by the size of the recovery but may, in appropriate
circumstance, greatly exceed it. See Lewis v. Kendrick, 944 F.2d ___ _____ ________
949, 957 (1st Cir. 1991); Gonz les v. Jillson, 642 F. Supp. 908 ________ _______
(D. Mass. 1986) (Tauro, J.) (finding in a police brutality case
that the award of $30,922.50 in attorneys' fees when the jury
awarded plaintiff $1,000 was not excessive because "[t]he
significance of the monetary award [was] outweighed by the im-
portant public interests vindicated by the general jury
verdict"). "No other result could comport with the principle
that plaintiffs should have an unrestricted opportunity to
vindicate their civil rights." Lewis, 944 F.2d at 957. Thus, _____
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as a remedial civil rights statute, 11I is entitled to a more
liberal construction of its terms than other fee shifting
statutes such as Mass. Gen. L. ch. 93A. See Batchelder, 393 ___ __________
Mass. at 822.
3. Successful vs. unsuccessful claims -- In one 3. Successful vs. unsuccessful claims --
respect, however, the summary endorsement of the district judge
was totally silent. Krewson submitted a fee application that
claimed recompense for the entire time his attorney spent
pursuing the case. In fact, he "prevailed" on but a portion of
his claims, and those but modestly. The endorsement of the
district judge nowhere considers the time Krewson spent advancing
unsuccessful theories of liability. With respect to the
analogous fee shifting provision of Mass. Gen. L. ch. 93A, we
have held that if a plaintiff prevails on some of his claims and
loses on others, the fee award may be limited to the time spent
proving the successful claims, unless it can be shown that the __________
claims were interconnected. See Peckham, 895 F.2d at 841-42 ___ _______
(citing Hanner v. Classic Auto Body, Inc., 10 Mass. App. Ct. 121,
123-24 [1980]); Equitable Life Assoc. Soc. v. Porter-Englehart, ___________________________ ________________
867 F.2d 79, 91 (1st Cir. 1989) (where Chapter 93A violation
proven, fees recoverable only for "any meaningful amount of legal
work . . . independently required" by the dereliction); Whyte v. _____
Connecticut Mut. Life Ins. Co., 818 F.2d 1005, 1011 n.20 (1st _______________________________
Cir. 1987) (similar). Here, Krewson claimed false arrest,
assault and battery, and false imprisonment -- among other things
-- arising out of certain events taking place on October 5-6,
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1986. He lost all these claims. This, his counsel told the
jury, was one half of his case; the events of October 12 com-
prised the other half. App., vol. III at 4-95. The district
judge so charged the jury, keeping the claims distinct just as
Krewson's counsel had argued. Id. at 4, 104-06. ___
On this record, there is no adequate basis for con-
cluding that all Krewson's claims are so sufficiently inter-
connected as to warrant a fee award in the total sum claimed by
Krewson. Compare Wagenmann v. Adams, 829 F.2d 196, 225 (1st Cir. _______ _________ _____
1987) (ruling that the suit at issue could not be viewed as a
series of discrete claims for purposes of fee award under 1988
where "[a]ll of the triable issues arose out of a short, visibly
linked series of events"). Indeed, particularly having in mind
that the burden is upon Krewson to show an interconnection
between the failed claims and the successful one, not only did
they, on their face, appear separate, but they were so presented.
Krewson cannot try on the basis of separateness, which
facilitated the jury's finding in his favor on at least part of
the case, and then, when it comes to fees, contend connectedness.
This is not to say that some of the depositions and
other preparations were not related both to the events of October
5-6 and those of October 12. So long as the attorney's work was
reasonably necessary for the prosecution of the October 12
claims, the district judge can properly charge these fees to
McDonough. As we said in Peckham, "in the last analysis, the _______
fee-shifting anodyne focuses on 'what [counsel's] services were
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objectively worth.'" Peckham, 895 F.2d at 843, citing Heller v. _______ ______
Silverbranch Constr. Corp., 376 Mass. 621, 629 (1978). __________________________
4. Costs -- The failure to consider apportionment as 4. Costs --
between successful and unsuccessful claims infects the issue of
costs as well. McDonough argues that the district court abused
its discretion in including expert witness fees and costs in the
award. The award of costs in this case is not governed by 1988
as asserted by McDonough. Rather, this Court applies the state
standard in evaluating claims for costs if the plaintiff
prevailed only on the parallel state claims. See Freeman v. ___ _______
Package Mach. Co., 865 F.2d 1331, 1347 (1st Cir. 1988). Where, _________________
as here, the Commonwealth has granted explicit statutory cost-
shifting authority, there is a presumption in Massachusetts law
favoring the awarding of expert witness fees. Id. at 1347-49 ___
(upholding the granting of expert witness fees under Mass. Gen.
L. ch. 151B, 9) (citing Linthicum, 379 Mass. at 379). In light _________
of that presumption, this Court concludes that expert witness
fees may be properly awarded in a successful action under the
Massachusetts Civil Rights Act. Freeman does suggest, however, _______
that an expert witness' fee can be prorated to reflect the work
performed for certain claims. 863 F.2d at 1350. Here, McDonough
appears to make a persuasive argument that the testimony of
expert Robert DiGrazia was limited to issues relating to the
first half of the case -- the arrest on October 5th (testimony
which was later stricken) and the liability of the City. Having
remanded the fee award to the district court for apportionment,
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however, we deem it appropriate likewise to remand to the
district judge the issue of costs for resolution in the first
instance.
Accordingly, the fee award is vacated and the matter of _______
appropriate attorney's fees and costs is remanded to the district ________
court for further proceedings consistent with this opinion.
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